TSCA Reform Enacted

On June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Act), enacting a number of reforms to the Toxic Substances Control Act (TSCA) that are aimed to modernize and streamline the federal law.

Enacted in 1976, TSCA required the Environmental Protection Agency (EPA) to identify and list the thousands of “existing” chemicals manufactured and sold at the time, and directed EPA to require manufacturers of “new” chemicals to evaluate the risks they pose and to notify the government before they were manufactured or processed. However, TSCA only permitted EPA to regulate these “new” chemicals if EPA determined that they presented unreasonable risks (taking costs into account), and then only in the “least burdensome” manner possible. It left “existing” chemicals altogether unregulated.

The Act strengthens EPA’s regulatory scheme by requiring it to screen all chemicals to establish the priority level of risks they pose to human health or the environment, and then to determine whether to regulate the high-priority chemicals without regard to cost or to “least burdensome” alternatives. EPA is required to initially evaluate 10 chemicals at a time, and later a minimum of 20 chemicals. Additionally, the Act will speed the regulatory process by allowing EPA to require manufacturers to conduct the initial testing of their products, rather than having EPA perform the tests as was the case under the old law.

Finally, the Act preempts state regulation of chemical substances. In its original form, TSCA allowed states to set more stringent standards than EPA, resulting in a patchwork of state and federal rules that producers found difficult to navigate. Under the new legislation, if EPA either determines that a chemical does not present an unreasonable risk or decides to regulate a chemical, then states may not enact divergent rules; and states must “pause” their regulatory process for chemicals that EPA has deemed high-priority and is in the process of evaluating. States may, however, regulate substances that EPA has not evaluated, enforce EPA’s standards, and seek waivers from EPA to regulate specific chemicals.

The Act was the result of a compromise between industry and environmental groups that was designed to both simplify and strengthen TSCA. The reformed law is anticipated to ease certain regulatory burdens (such as eliminating competing state and federal rules) while increasing oversight of substances that present the greatest risk of harm.